Actually, not quite. It is NOT “the Betsy Ross flag”. But it IS the Bennington flag. The second picture on the Wikipedia page shows a replica - identical to the one in this news story - flying in front of San Francisco City Hall.* The Bennington flag is also one of the ten historic flags flying at the FBI building (or has flown, if they’ve changed it up since then).
So I’d agree with Bricker that this should absolutely be protected under the definition contained in the OP. It’s a flag that the US officially used in the past and is acknowledged to be so today by the government. And from a personal argument instead of a legal one: I’m not a flag enthusiast and personally think the US, as a general rule, has a weird obsession about flying flags. BUT I loathe the concept of busybody HOAs and am 100% hoping they lose. I refuse to ever buy a home with an HOA. I think HOA membership should be optional when purchasing a house. The previous owner was a member? Cool. I don’t care. I understand that it IS (or can be) something that is added onto the property deed. I’m saying I think it SHOULDN’T be.
As an aesthetic side note, goddamn that replica is completely RUINED by lazily using a default sans-serif font for the 76. Jesus Christ. But hey, the city government of SF thinks it’s okay, so whatever. Blech.
Some people genuinely don’t care. I have a family member who lives in a planned community and loves it. It fits her needs entirely, and there are a whole host of things she doesn’t have to worry about. It’s like the Macintosh of homes.
As per Brickers cite it It seems pretty obvious. The Gadsden flag has completely different colors and does not even remotely look like a modern flag. The Bennington flag looks like a modern american flag the only major difference is the number of stars.
Back when I was a kid we called that the “bicentennial flag” or “76 flag” sometimes, don’t know if that’s the official name or not. I think most people would look at it and say “that’s an American flag” even if it’s not official somehow or other.
Even voluntary organizations must follow the law.
However, I’m not sure it’s correct to view a HOA as “totally voluntary” given that in order to live in certain areas you MUST belong to one and you can NOT leave a HOA without selling your home, which is not particularly quick unless you’re willing to incur a large financial loss.
HOA’s have become so ubiquitous in some areas it’s extremely difficult to find property unencumbered by one.
As I said, in some areas your choices are very limited.
Other people don’t consider the long-term issues with one.
The statute does seem to imply that it has to have stripes, stars, and the proper colors (which would rule out the Gadsden flag, I suppose, though what if we added some stars and a stripe or two and changed the colors…ok then?). But I don’t think your reading of the statute as simply requiring that the flag sorta look like the modern flag can be correct.
The law from which we get the relevant definition, 4 USC § 3, is a prohibition on adding additional marking to the U.S. flag. It makes no sense if the scope of the definition itself includes U.S. flags with additional markings.
Instead, I think the law has to be read as protecting stylized or official versions of the modern flag, or protecting stylized or official versions of the modern flag and some subset of historical flags.
The key term “flag, standard, colors, or ensign of the United States of America,” is never really defined as to whether it refers to the modern flag or any historical flag. I think the better reading is that it refers to the modern flag–in part because not every historical flag had stars and stripes. If that reading is correct, then the question is whether this flag purports to be the modern flag, and clearly it does not.
So the only reading that saves this flag is one that protects only the subset of historical flags that have stars and stripes and the proper colors. Doesn’t that strike you as a bit odd?
I assume it’s so your neighbors are limited in what they can do with THEIR properties, if you fear they might lower the value of your property in the process.
Not just the value of the home but also your ability to enjoy it.
I might not care so much about the value of my home now (I will if I ever need to sell), but that doesn’t mean I want to come home to my neighbor having a rusted out chevy on the front lawn or the guy across the street burning crosses or the guy at the front painting his house florescent pink. I’m sure the rebuttal will be “But I don’t care about that” and that’s fine, but I do care about stuff like that, so I want to live somewhere that prohibits it.
1)“But I don’t think your reading of the statute as simply requiring that the flag sorta look like the modern flag can be correct.”
It must look like an American flag as seen by the average person. My interpretation is that the average person will see anything resembling a modern American flag as representing America.
"by which the average person seeing the same without deliberation may believe the same to represent the flag, colors, standard, or ensign of the United States of America."
2)I think the better reading is that it refers to the modern flag–in part because not every historical flag had stars and stripes. If that reading is correct, then the question is whether this flag purports to be the modern flag, and clearly it does not.
“which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, . . .”
3)So the only reading that saves this flag is one that protects only the subset of historical flags that have stars and stripes and the proper colors. Doesn’t that strike you as a bit odd?
In essence, the spirit of the law is to protect the representation of the American Flag and the meaning behind it. Pretty much I believe it is trying to say that if it looks like a flag representing America and is easily recognized as such then it is protected: “without deliberation may believe the same to represent the flag”
So, the law is designed to protect the display of the modern American flag itself as well as anything that can be immediately recognized as an American flag; and as such covers flags that look similar to an american flag but have a few differences - such as earlier versions with different numbers of stars. I think it basically wants to protect easily recognizable displays of patriotism.
As far as I know, no HOA is needed for protection against these things. Usually zoning or other laws will provide adequate protection - except for pink house painting; as long as the excess paint is disposed of in a manner approved by the EPA.
That is one element. The other is that the flag evidently purport to be the [modern or historical] flag. The Bennington flag obviously does not purport to be the modern flag. So the only question is whether historical flags are included.
The law is silent on that point, AFAICT, but I see two arguments against the inclusion of historical flags. First, the “flag of the United States” is, absent other context, the one with fifty stars and stripes. The law is obviously saying you can’t show 49 stars and thereby avoid the prohibition on additional elements, but I’m not sure it’s saying it applies to flags where the official version doesn’t even have 50 stars. And second, the decision to include protection for some but not all historical flags seems quite odd to me. Why do that?
Then you’d live in an area that many wouldn’t want to live in and your property values would take a hit accordingly.
I live in the Washington DC metro area. So I have several choices if I want to own a home vice rent.
Buy a ~$400,000 townhouse with the HOA 20 minutes from the city
Buy a ~$900,000 detached family house with no HOA 20 minutes from the city
Buy a ~$400,000 detached family house with no HOA 90 to 120 minutes (plus) from the city.
I’ve chosen 1. Not because I want to live with fellow storm troopers, but because this is the best choice for me right now.
And from my experience with HOAs I can say this. The plusses are better than the negatives. I’ve been to neighborhoods with piss poor HOAs. They are generally is a lesser state of repair, with more junk cars that haven’t been moved in a dog’s age, useless crap stored everywhere, Christmas decorations in June etc. And while I might be told one every couple of years to move something, they development is clean, well cared for and I’m proud of it. It just looks good and the property values show that.
HOAs are in place to ensure that the lowest common denominator doesn’t run the place down, not because we all like more rules.
Having said that, there is always one guy who the rules don’t apply to. Who bitches about everything, and pushes the envelope all the time. Who you can never make happy and is always itching for a confrontation.
And five will get you ten that flag boy has gone to his HOA to bitch about someone else.
The perception of the item being displayed and what it represents is the key issue here. A historical flag may Represent America, or an American flag, but it may not be recognizable as such to the average person. If a flag has red white stripes and white stars behind a blue background then most people would instantly think it is a flag representing America, even if it does not have every detail the same as a modern flag. Now, this point can be debated, and how you determine things precisely is hard to say. There is no doubt, however that the other historical flag mentioned, the gadsden flag, does not have a single feature that is similar to a modern flag and also has not been used or shown with the frequency that it would be recognizable by the average person as being an American flag.
I think you’re still conflating the two required elements, which are that the flag purports to represent the U.S. flag, and that average people would understand it as such.
I’m focused on the first element–what the flag purports to be. I think we can agree that the Bennington flag does not purport to be the modern flag. So the only question is whether the statute extends to some but not all historical flags. You keep making arguments about similarity to the modern flag, so I’m not clear on whether even you think it should be extended to flags that purport to represent historical flags or not.
You’re limited in what you can do with your own property according to most municipal codes anyway. Grow your grass too tall and the city will tell you to cut it. Fill your yard up with junk and the city will tell you to remove it. Fail to do either and the city will do it for you and charge you for the privilege.
As for why some people like HOAs, well, in part, I suspect it’s to keep a bad element out of the neighborhood. If you’ve never had a truly shitty neighbor you might not realize how miserable they can make it for everyone else. When I lived in Little Rock the people across the street were pretty darn trashy and even though they constantly violated city ordinances the city did nothing about it until a few months before I moved away. I kept thinking to myself that an HOA would have been on them like white on rice but it took the city forever to do anything about it.
If the flag purports to be an american flag, but is not recognizable as an American flag by the average person, then it is not protected as far as I can tell. I keep making arguments about the similarity to the modern flag because the modern flag is the only flag I can think of that the average person would view of as a flag representing America. It’s like that tree falls in the forest question - if a historical flag can purport to be whatever it wants, but if if its not recognizable by the average person,then it is not protected. So the historical flags that are recognized by the average person as being American are OK, those that would not be recognized would not be OK.
So if a person seeing some arrangement of various numbers of stars and stripes and, this is also important I think, “without deliberation” believes this arrangement to represent an Amerian flag then that araingement is protected.
Maybe I need to make my coffee, I’m not sure if I’m answering the question right. I am sooo glad I decided not to apply to law school, I think I would have ended up in an institution if I had to do this sort of thing for a living.
I assume the HOA is getting a bad rap on this one. The flag rule is probably in place to prevent people from flying a Swastika or Confederate flag and I’m guessing they ban all flags because it’s hard (legally) to ban just a few flags. The banning of such flags seems like a reasonable thing to do and is not something that can be carried out by the government.
I didn’t say I would like many flags, and I am glad flying the Union flag is rare in Britain, but apart from it being the jelly-bellied flag-wagger’s business, it’s simply a flag in the breeze and scarcely likely to impact others’ lives as some entrepreneur opening a crack house in the neighbourhood.
I dislike modern architecture far more than the odd piece of cloth that might mercifully hide some of the inadequacies of the building.
